NATO Airstrike on Varvarin Bridge
4 September 2013 – The Varvarin court proceedings in Germany concern the bombing of a bridge in rural Serbia as part of the NATO Operation Allied Force during the Kosovo war. On 30 May 1999 – a religious holiday and market day which saw many people on the streets and in public squares – a bridge in the village of Varvarin came under a twofold aerial attack, killing ten people and wounding 30 more, 17 of them seriously. Since 1999 those affected by the attack have been seeking compensation from the Federal Republic of Germany. Their claim has been rejected by three different courts and most recently, in August 2013, by the Federal Constitutional Court (Bundesverfassungsgericht).
Despite rejecting the appeal, the Federal Constitutional Court criticized a number of aspects of the lower courts’ decisions, criticisms which are relevant for other related proceedings. The Bundesverfassungsgericht found fault with the insistence of the lower courts that the complainants bear the full evidentiary burden in relation to the planning and carrying out of the bombing even though such a burden was clearly impossible for the Serbian complainants to satisfy. The Federal Constitutional Court also criticized the wide margin of discretion afforded by the other courts to the Federal Government in relation to so-called ‘target lists’ and leaving the lists outside of the scope of the court’s scrutiny. These lists name objects which are purported to represent legitimate military targets. In their decisions, the Higher Regional Court of Cologne (Oberlandesgericht Köln) and the Federal Court of Justice (Bundesgerichtshof) adhered to the view of the Federal Government that inspection of such lists was a matter of foreign and defense policy and not justiciable.
The outcome of the Federal Constitutional Court’s decision is that the victims continue to be denied access to compensation proceedings based on the illegal NATO attack. To date, efforts to secure damages directly from NATO as well as from states – such as Germany – that were involved in the operation have been unsuccessful. This latest decision demonstrates the continued relevance of the call to allow victims of military operations to bring claims within the ordinary court system.
ECCHR supported the attorneys Sönke Hilbrans and Wolfgang Kaleck in the proceedings. Professors Michael Bothe (Frankfurt am Main) and Andreas Fischer-Lescano (Bremen) submitted two expert legal opinions in support of the victims of the attack.